Marcato and Varga

[2007] FamCA 490

FAMILY COURT OF AUSTRALIA

MARCATO & VARGA [2007] FamCA 490

FAMILY LAW – CHILDREN - Final parenting orders – alleged sexual abuse – unopposed by the father who was the alleged perpetrator.

Family Law Act 1975

APPLICANT: Mr Marcato

RESPONDENT: Ms Varga

INDEPENDENT CHILDREN’S LAWYER: Jean Forster & Associates

FILE NUMBER: MLF 3343 of 2005

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 May 2007

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Ms A.E. Carter

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms S.C. Dowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Jean Forster & Associates

Orders

1. That there be final orders in terms of the Minutes of Orders dated 11 May 2007 (“the Minute”) and attached hereto.

2. That my reasons for judgment delivered this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file, noting that the Father’s address for service is now D.

3. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit A”.

2. Final orders in the terms of the minute, which I mark exhibit "A" and direct remain on the court file.

3. That my reasons for judgment delivered this day be transcribed, and, when transcribed, a copy made available to the parties, noting that the father's address for service is now D.

MINUTES OF ORDERS:

1. That all previous parenting orders with respect to the child, a daughter, born in April 2000 be discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child liver with the mother.

4. That all extant applications be dismissed and the matter be removed from the active pending cases list.

5. That the independent children’s lawyer be discharged.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3343 of 2005

Mr Marcato

Applicant

And

Ms Varga

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. These proceedings, which concern the child, a daughter, born in April 2000, come before me in the Magellan duty list and the mother and independent children’s lawyer seek that final orders be made on the basis that those orders are not opposed by the father. 

2. The mother is represented by Ms Carter, of counsel.  The independent children's lawyer is represented by Ms Dowler, of counsel.  There is no appearance by or on behalf of the applicant father. 

3. I am satisfied that the father is aware of today's hearing date because the orders made on 19 March 2007, adjourning it to today, have been duly sent to the father’s address for service.  There are also documents which were filed yesterday on which today is clearly endorsed as the date for hearing.  Some of those documents are filed on his behalf.  There is a notice of address for service, giving his address as D, consequent upon his solicitor, Jonathan Otis, having ceased to act on his behalf.  There is also an affidavit sworn by the father on 10 May 2007, to which I will refer in more detail later. 

4. I am satisfied that he has been accorded procedural fairness. 

5. The mother seeks orders which are supported by the independent children's lawyer.  They are for all previous parenting orders in relation to the child, to be discharged, that the mother have sole parental responsibility for the child, that the child live with the mother, that all extant applications be dismissed and the matter removed from the active pending cases list and the independent children's lawyer be discharged.  I am satisfied that it is in the child’s best interests to make those orders and these reasons are my reasons. 

6. Where I make statements of fact, they are findings of fact. 

7. The mother and the father lived together from approximately May 1999 and separated in September 1999, which was well prior to the child’s birth in April 2000.  There was a dispute in relation to paternity, which resulted in there not being regular contact immediately after her birth. 

8. On 11 November 2005 the father filed an application seeking that the child live with the mother, that he spend time with the child each alternate weekend from 5pm on Friday until Monday morning and some time during school holidays. 

9. On 7 December 2005 the mother filed a response[1] in which she sought that the father spend time with the child for only two hours each Sunday and that all such time be supervised by her or her family members.  Relevantly, the mother also sought that she have sole responsibility for the long term care, welfare and development of the child.  Whilst concepts have changed since the mother filed her response, I am satisfied that notice to the father of her application for sole responsibility for long term issues constitutes notice to him now of orders sought for sole parental responsibility. 

   [1] document 4 on the court file

10. On 12 December 2005 orders were made by the consent of the mother and the father providing for the father to have contact each Sunday for two hours at a children's indoor play centre. 

11. On 1 May 2006 Ms M, a family consultant, prepared a family report which recommended that the father have unsupervised contact, initially for four hours, increasing in six months to a full day.  Ms M recommended that, once the child turned seven years old, overnight contact be trialed, with a view to alternate weekend contact. 

12. On 15 May 2006 orders were made providing for graduated daytime contact culminating in January 2007 to each Sunday from 9am to 5pm. 

13. The final hearing of the competing applications which were initiated in 2005 was in the pool of cases awaiting the allocation of a trial notice listing. 

14. The father issued contravention applications against the mother in June 2006 and January 2007.  The second of those applications was determined by the Honourable Justice Young on 5 March 2007.  On that day His Honour made orders suspending the operation of the earlier orders for the father to spend time with the child on a graduated basis culminating in alternate Sunday time.  His Honour ordered that the father have supervised time with the child each alternate Saturday between 10am and 4pm and that the mother file a Form 4 notice of risk of abuse to formalise her concerns in the matter and it be referred for a Magellan assessment. 

15. In March 2007 the mother filed a Form 4 alleging that the father had sexually touched the child and that the father has exposed the child to sexualised behaviour.  The mother's Form 4 annexes a report from a counsellor, Ms P, who had seen the child at that stage on some 10 occasions, being between November 2006 and February 2007.  The counsellor Ms P concludes that the child has been immersed in conflict between her parents and that further investigations are needed in relation to allegations of abuse. 

16. On 19 March 2007 the matter was accepted into the Magellan list.  This is a highly resourced list specifically designed to deal with cases of serious physical and sexual abuse of children.  On 19 March 2007, procedural orders were made by Registrar Williams including appointing today as a further hearing.

17. The Department of Human Services (“DHS”) was requested to, and has investigated the matter and completed a report of those investigations.  The report is on the court file.  It is dated 3 May 2007.  It appears to be a well reasoned and thorough report.  It concludes that there are significant concerns for the child spending time with the father and it finds the concern of harm resulting from sexual abuse to have been substantiated.

18. At page 7 of the report there is reference to the writer having contacted the father requesting an interview but him not making himself available for an interview. 

19. The DHS report sets out the following conclusion:-

    There are currently significant concerns for [the child] emotional and physical safety/wellbeing pertaining to her having contact with [the father], based on the following rationale:

    ·That [the child] has disclosed sexual abuse perpetrated by [the father] to several professional sources, including psychologist [Ms P], the Sexual Offences and Child Abuse Unit and Child Protection.  These disclosures have been clear and the information disclosed has been consistent over time.

    ·That [the mother] has noted a change in [the child’s] behaviour including her wetting the bed following either physical or phone contact with [the father], that she has been having nightmares and that she has been exhibiting angry behaviours.  All of these abovementioned behaviours can be indicators of sexual abuse, and this, in conjunction with [the child’s] disclosures of sexual abuse perpetrated by [the father] indicate to the writer a high probability that she has been sexually abused in is care.

    ·That [the child] has also disclosed that she is very fearful of future contact with [the father].

    ·That [the child] disclosed other significantly concerning information such as [the father] smacking her, her having bruises after having access with [the father] and [the father] giving her a drink which makes her sleepy.

    ·That concerns remain about the impact that being made to have access with [the father] may have on both [the child’s] physical and emotional wellbeing.

    Therefore, based on the evidence collected, the Department of Human Services have made a decision to substantiate the concerns ‘harm resulting form (sic) sexual abuse’ and ‘emotional or psychological harm’.

20. The DHS report contains the following recommendations:-

    It is therefore respectfully recommended:

    ·For [the child] to continue to reside with [the mother].

    ·For all contact between [the child] and [the father] to be supervised by an independent party, such as a contact centre.

    ·That [the mother] continue to ensure that [the child] attend counselling through [Ms P], or in the event that this in (sic) [is] not able to continue, for alternative counselling for [the child] to be sought through either the Australia Childhood Foundation or the Centre Against Sexual Assault (CASA).

    ·The Department remains concerned in relation to the negative emotional impact that [the child] having contact with [the father may have on her and recommends that this be closely monitored by [Ms P].

21. In the affidavit which was filed on behalf of the father yesterday, the father makes it clear that he denies each and every allegation which he identifies as having been made against him in relation to inappropriate conduct by him to or affecting [the child].  The father does not attend court today to seek any orders.  Neither does he oppose the orders sought by the mother.  The father’s position is made abundantly clear in the following evidence (taken from the affidavit):-

    [12]. I have recently had the benefit of detailed legal advice as to my rights, obligations and various competing options in relation to this proceeding and my desire to continue forming a sustainable relationship with [the child]. Notwithstanding all the advice I have received I have reluctantly and with the deepest regret taken the decision that I will no longer participate in these proceedings and will therefore not be able to see my daughter or have any future role or involvement in her life. I am devastated by this outcome however I have no faith whatsoever in the Department of Human Services or the system generally to be able to uncover and expose the complete truth in this matter. I do not have the financial capacity to be properly legally represented and feel overwhelmed in the face of such abhorrent allegations such that I am unable to adequately represent myself. I am also conscious that the more I fight to remain in [the child’s] life the more she will be exposed by the mother and her family to the adverse pressures and extreme influences which have clearly played a fundamental part in [the child] having made the comment attributed to her. I do not want [the child] to suffer from such emotional confusion and the unrelenting demands being placed on her to adopt a negative view of her father. I am convinced that the mother will not stop her campaign against me until I am no longer present. Withdrawing from the matter is on my view the lesser of two evils. The multitude and the magnitude of the lies perpetrated my (sic) [by] the mother and the irrational desire she clearly harbours to destroy any bond I might have or wish to form with [the child] has made the possibility of any meaningful relationship untenable and the likelihood of any reasonable outcome in this matter impossible.

    [13]. Accordingly, I have instructed my solicitor Jonathon Otis to file and serve this affidavit on my behalf and to immediately thereafter cease to represent me. I have also instructed him to advise the Independent Children’s Lawyer of my position in this matter and the substance of my reasons for deciding as I have. I am informed and verily believe that

    
    

    Mr Otis spoke at length with Jean Forster on 9 May 2007.

22. Jean Forster of Forster & Associates was appointed as the independent children’s lawyer pursuant to a request made in the order of 22 February 2006 and within the meaning of Division 10 of Part VII of the Act.  Ms Forster’s role is to form an independent view, based on available evidence, of what is in [the child’s] best interests and then act in these proceedings in what she believes to be the best interests of [the child’s].[2]  She is not a legal representative retained by [the child] and she is not bound by any instructions from [the child].[3]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by [the child] are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[5] 

    [2] s 68LA(2) Family Law Act 1975 (Cth).

    [3] s 68LA(4) Family Law Act 1975 (Cth).

    [4] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [5] s 68LA(5)(e) Family Law Act 1975 (Cth).

23. As indicated, the independent children's lawyer supports the orders sought by the mother. 

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s.60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.  

2. Subject to the best interests of the child being the paramount consideration, s.60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s.60CC are to be examined and ultimately weighed.  The importance of s.60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s.60B objects and underlying principles may be decisive. 

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the child are met’ by:-

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The objects may be regarded as the core values of the legislation.  Subsection 60B(1)(a) of the Act has particular relevance in these proceedings.  It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. 

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:-

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

Determining the child’s best interests

1. In determining the best interests of the child, I am required to consider two primary considerations and several additional considerations, listed in s.60CC of the Act.

The primary considerations

1. The primary considerations echo the first two objects set out in s.60B of the Act.   The primary considerations are set out in s.60CC(2) and are described as follows:-

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The benefit of a meaningful relationship as a primary consideration

1. I interpret s.60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the father and the child by reference to additional considerations.  It is a prospective enquiry.  I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to the child into the future. 

2. Family law operates privately between parties to the proceedings.  For whatever reasons, the father wishes to take no further role in the child’s life.  That is very significant in terms of s.60CC(2)(a) of the Act because the father, of his own volition, is not seeking a meaningful or significant relationship with the child. 

Protection from harm – as a primary consideration

1. The second of the primary considerations mirrors s.60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.

2. The term, ‘abuse’ is narrowly defined in s.4 of the Act as ‘an assault, including a sexual assault, of the child’[6] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[7]

   [6] s 4(a) Family Law Act 1975 (Cth).

   [7] s 4(b) Family Law Act 1975 (Cth).

1. ‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[8]  A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.

   [8] s 4 Family Law Act 1975 (Cth).

2. This factor also requires a prospective evaluation.  As such, I must assess the future risk of exposure by the child to physical or psychological harm and formulate orders which protect her from that harm. 

3. There is cogent evidence indicating that the child has been subjected to abuse as defined in the Act.  The fact that the father chooses not to participate in the proceedings means that there is no competing evidence.  I can only assume that there is no evidence which would have assisted him.  

4. I take into account the additional considerations.  However, where one party walks away from the proceedings, it is not particularly helpful to analyse evidence relevant to the additional considerations.  The fact of the matter is that only one parent, the mother, now seeks orders from the court and to be responsible for the child.  

Parental responsibility

1. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[10] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s.4 of the Act as follows:

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a)the child’s education (both current and future); and

   b)the child’s religious and cultural upbringing; and

   c)the child’s health; and

   d)the child’s name; and

   e)changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [9] s 61B Family Law Act 1975 (Cth).

   [10] s 61DA(1) Family Law Act 1975 (Cth).

2. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[11]  The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[12] and to ‘make a genuine effort to come to a joint decision about that issue’.[13]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

   [11] s 65DAC(2) Family Law Act 1975 (Cth).

   [12] s 65DAC(3)(a) Family Law Act 1975 (Cth).

   [13] s 65DAC(3)(b) Family Law Act 1975 (Cth).

3. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)   If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[14] or abuse of the child or another child who is a member of the parent’s family;[15]

   b)     If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[16] or

   c)     Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[17]

   [14] s 61DA(2)(b) Family Law Act 1975 (Cth).

   [15] s 61DA(2)(a) Family Law Act 1975 (Cth).

   [16] s 61DA(3) Family Law Act 1975 (Cth).

   [17] s 61DA(4) Family Law Act 1975 (Cth).

4. I am satisfied that the presumption is rebutted because of the evidence concerning abuse and the fact that the father seeks no involvement in the child's life. It would be wholly inappropriate to require the child’s mother to consult with her father.

5. Orders should be made which finalise these proceedings as between the parties and equip the mother to care for the child in the best possible way.  The orders which I make confer sole parental responsibility on the mother.  That is appropriate in the circumstances of this case.  As I have previously discussed, the father wants no part in the child’s life in the future. 

6. I am satisfied that final orders should be made in the terms sought by the mother and supported by the independent children’s lawyer.  It is in the best interests of the child for me to make the orders sought by the mother and I will do so. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Marcato & Varga.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  29 May 2007